Kerala High Court
Jeby George vs The State Of Kerala Represented By ... on 25 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942
WP(C).No.433 OF 2013(D)
PETITIONERS:
1 JEBY GEORGE, UPPER PRIMARY SCHOOL ASSISTANT,
PATTOM THANU PILLA MEMORIAL VOCATIONAL HIGHER
SECONDRY SCHOOL, MARUTHOORKONAM, P.O., KOTTUKAL,
BALARAMAPURAM, THIRUVNANTHAPURAM-695 501.
2 ARNOD WILLIAMS J., HIGH SCHOOL ASSISTANT (HINDI),
PATTOM THANU PILLA MEMORIAL VOCATIONAL HIGHER
SECONDRY SCHOOL, MARUTHOORKONAM, P.O., KOTTUKAL,
BALARAMAPURAM, THIRUVNANTHAPURAM-695 501.
3 JEESHA MOL V.V., UPPER PRIMARY SCHOOL ASSISTANT,
PATTOM THANU PILLA MEMORIAL VOCATIONAL HIGHER
SECONDRY SCHOOL, MARUTHOORKONAM, P.O., KOTTUKAL,
BALARAMAPURAM, THIRUVNANTHAPURAM-695 501.
4 ASA DEVI K.I., LOWER PRIMARY SCHOOL ASSISTNT,
PATTOM THANU PILLA MEMORIAL VOCATIONAL HIGHER
SECONDRY SCHOOL, MARUTHOORKONAM, P.O., KOTTUKAL,
BALARAMAPURAM, THIRUVNANTHAPURAM-695 501.
5 SAJU V., HIGH SCHOOL ASSISTANT (HINDI), PATTOM
THANU PILLA MEMORIAL VOCATIONAL HIGHER SECONDRY
SCHOOL, MARUTHOORKONAM, P.O., KOTTUKAL,
BALARAMAPURAM, THIRUVNANTHAPURAM-695 501.
6 A.M.PREMKUMR, LOWER PRIMARY SCHOOL ASSISTANT,
PATTOM THANU PILLA MEMORIAL VOCATIONAL HIGHER
SECONDRY SCHOOL, MARUTHOORKONAM, P.O., KOTTUKAL,
BALARAMAPURAM, THIRUVNANTHAPURAM-695 501.
7 ASHA P.R., LOWER PRIMARY SCHOOL ASSISTANT,
PATTOM THANU PILLA MEMORIAL VOCATIONAL HIGHER
SECONDRY SCHOOL, MARUTHOORKONAM, P.O., KOTTUKAL,
BALARAMAPURAM, THIRUVNANTHAPURAM-695 501.
BY ADV. SRI.V.A.MUHAMMED
WPC 433/13 2
RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY
TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,
SECRETRIT, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
JAGTHY, THIRUVANANTHAPURAM-695 014.
3 THE DISTRICT EDUCTIONAL OFFICER
NEYYATTINKARA, THIRUVANANTHAPURAM-695 121.
4 THE ASSISTANT EDUCTIONAL OFFICER
BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.
BY SRI. SUNIL KUMAR KURIAKOSE (GP)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 433/13 3
JUDGMENT
Dated this the 25th day of January 2021
The petitioners have approached this Court being aggrieved
by the fact that the periods of service when they were retrenched
have not been reckoned for the purpose of pension and other benefits.
They say that they were retrenched from service on 14.07.1998 due
to reduction of staff strength in their school and were reinstated on
26.07.1999 on protection and assert that they are, therefore, entitled
to all the benefits, including reckoning of the period of break during
the above period as per Note 3 to Rule 31 of Part III Kerala Service
Rules (KSR).
2. The petitioners contend that as per Government Decision
No.8 under Rule 14E of Part III KSR the periods of broken service
will be eligible to be counted, where the promotion before the break
was not provisional or for limited periods and as long as the break
was only due to reduction of staff strength.
3. The petitioners contend that they were on regular
continuous service, but retrenched only on reduction of staff strength
and, therefore, that the retrenched period is entitled to be reckoned
for all service benefits. They support their submission by relying on
the judgment of this Court in W.P.(C)No.28108/2006, which has
declared that there is no prohibition under the Rules to reckon the
interrupted service of an employee and that as per Government
Decision No.8, under Rule 14E of Part III KSR, along with Rule 31
thereof, such benefits will be applicable to the aided school teachers
also particularly under the mandate of Chapter XXVIIIB of the Kerala
Education Rules.
4. The petitioners, therefore, pray that Exhibits P4 to P4(d),
P5, P5(a) and P8 be quashed and the respondents be directed to
reckon the period of their retrenchment, namely from 15.07.1988 to
25.07.1999, for all service benefits.
5. In response to the afore submissions, the learned
Government Pleader submitted that a counter affidavit has been filed,
wherein, it has been averred in paragraphs 4 and 5 as under:
"It is submitted that the competent authority the 1 st respondent
had specifically ordered in G.O.(P) 240/99/G.Edn. dated 29.09.1999
that the leave period will not count for any service benefits
including pension. If such benefit is allowed to the petitioners,
then the similar benefit has to be given to similarly placed teachers
which is against the rules and orders. Conditions of service of
aided School teachers are as per Chapter XIVA of KER. In KER
there is no such provision for counting the period for service
benefit.
It is submitted that Government examined the case in detail. All
the teachers were thrown out due to lack of posts. They re-entered
in service because of protection. Government have already ordered
in G.O.(P)No.240/99/G.Edn. dated 29.09.1999 that, the period
during which the teachers were out of service will be regularised
as eligible leave or Leave Without Allowances. Government took
this general decision after considering all aspects of the matter. As
per Rule 31 and as per Circular No.99/09/Fin B dated 16.12.2009
as far as aided school teachers are concerned the period when
they are out of service (retrenchment period) or due to lack of
vacancy or any other reason they are out of service will not be
reckoned for pension. Hence in the Government Order it has been
clearly specified that the period will not be reckoned for pension
and other service benefits. In KER it has been specified that "the
number of permanent teachers under each category in the staff list
of any school or in all the schools under each category in the staff
list of any school or in all the schools under one educational
Agency shall not exceed the aggregate number of sanctioned posts
under that category in that school or in that unit as the case may
be and excess hands, if any, based on the strength of the classes
(fixed in accordance with sub rule 1 of 12 of Chapter XXIII) will be
retrenched by throwing out the junior most hands.". Thus the
petitioners are not eligible for getting the service benefits during
the period of retrenchment."
6. The learned Government Pleader, therefore, prayed that
this writ petition be dismissed.
7. I have considered the afore submissions and have also
gone through the pleadings and documents available on record.
8. The facts of this case show, without much of a doubt, that
the petitioners were regularly appointed but were retrenched solely
on account of the reduction in the staff strength. Their regular
appointments have already been approved, but they were kept out of
service from 15.07.1998 to 25.07.1999, which period was also
regularised by the Government by granting them Leave Without
Allowances, on condition that this period will not be counted for any
service benefits. However, going by Rule 31 of Part III KSR
interruptions in service of employees will count for pension, provided
it is not specified otherwise and if so, it will have to be recorded
accordingly in their Service Books.
9. That said, Government Decision No.8 under Rule 14E of
Part III KSR provides that the benefit of reckoning the periods of
break as per Note 3 to Rule 31 of Part III KSR will be allowed, where
the appointment before the break was not provisional or for a limited
period and if the break was only due to reduction of staff strength of
the institution. Since these provisions, prima facie, apply to aided
school teachers in view of Rule 33 Chapter XXVIIIB of the KER, I am
of the view that the petitioners deserve to be given a proper
consideration of their claims by the competent authorities, in the light
of the afore provisions of law.
10. I am persuaded to this course also because, when I go
through the impugned orders, it is clear that the competent
authorities have rejected the petitioners' claims based on two
Government Orders mentioned therein and it is also recorded that in
their Service Books that the broken periods of service will not be
counted for pension and other benefits.
11. I am, therefore, of the view that Exhibit P8 order of the
Government will certainly require to be reconsidered, particularly
because it is conceded therein that all the petitioners were thrown
out service only due to reduction of staff strength and nothing else.
In the afore circumstances, I order this writ petition and set
aside Exhibit P8 order, with a consequential direction to the
Government to reconsider the claim of the petitioners, after affording
an opportunity of being heard to them as also the Manager of the
School - either physically or through video conferencing - thus
culminating in an appropriate decision thereon, as expeditiously as
possible, but not later than three months from the date of receipt of a
copy of this judgment.
Needless to say, while completing the afore exercise, the
Government will consider the impact of G.O.(P)No.175/99/G.Edn.
dated 26.07.1999 and G.O.(P)No.112/01/G.Edn. Dated 26.03.2001,
since the petitioners say that they commenced their regular service
prior to 14.07.1996 and therefore, that under the provisions of these
orders, their broken services could not have been left out for the
purpose of service benefits. The Government will also advert to the
declarations of this Court in the judgment in W.P.(C)No.28108/2006, a
copy of which will be placed before them by the petitioners at the
time when the hearing is conducted.
Sd/-
Devan Ramachandran, Judge
tkv
APPENDIX
PETITIONER'S EXHIBITS:
EXT. P1 TRUE COPY OF THE ORDER NO.B4-8634/99/K.DIS. OF THE THIRD
RESPONDENT DATED 20.04.2001
EXT. P2 TRUE COPY OF THE ORDER NO.D.DIS.F.2230/99 OF THE FOURTH
RESPONDENT DATED 24.11.1999
EXT. P3 TRUE COPY OF THE G.O.(P)NO.240/99/G.EDN. DATED 29.9.1999
OF THE GOVERNMENT
EXT. P4 TRUE COPY OF THE G.O.(RT)NO.1760/02/G.EDN. DATED
24.6.2002 OF THE GOVERNMENT (1ST PET.)
EXT. P4(a) TRUE COPY OF THE G.O.(RT)NO.82/2003/G.EDN. DATED
4.1.2003 OF THE GOVERNMENT (3ND PET.)
EXT. P4(b) TRUE COPY OF THE G.O.(RT)NO.1852/02/G.EDN. DATED
28.6.2002 OF THE GOVERNMENT (3RD PET.)
EXT. P4(c) TRUE COPY OF THE G.O.(rt)NO.3069/02/G.EDN. DATED
10.9.2002 OF THE GOVERNMENT (4TH PET.)
EXT. P4(d) TRUE COPY OF THE G.O.(rt)NO.1162/03/G.EDN. DATED
26.3.2003 OF THE GOVERNMENT (5TH PET.)
EXT. P5 TRUE COPY OF THE ORDER NO.F.2146/06/L.DIS. OF THE 4TH
RESPONDENT DATED 15.7.2006 (6TH PET.)
EXT. P5(a) TRUE COPY OF THE G.O.(RT)NO.3085/02/G.EDN. DATED
11.9.2002 OF THE GOVERNMENT (7TH PET.)
EXT. P6 TRUE COPY OF REPRESENTATION SUBMITTED BEFORE THE
GOVERNMENT BY THE PETITIONERS
EXT. P7 TRUE COPY OF THE JUDGMENT IN WPC 5927/2012-M DATED
9.3.2012
EXT. P8 TRUE COPY OF THE G.O.(RT)NO.4439/12/G.EDN. DATED
20.09.2012 OF THE GOVERNMENT
